An authority must negotiate private-participation terms for a turnpike project, may enter a development agreement only for qualifying projects, and toll-collection agreements must include approval materials, term limits, and a buyout price mechanism.
Sec. 366.407. TERMS OF PRIVATE PARTICIPATION. (a) An authority shall negotiate the terms of private participation in a turnpike project under this subchapter, including: (1) methods to determine the applicable cost, profit, and project distribution among the private participants and the authority; (2) reasonable methods to determine and classify toll rates and the responsibility for setting toll rates; (3) acceptable safety and policing standards; and (4) other applicable professional, consulting, construction, operation, and maintenance standards, expenses, and costs. (b) A comprehensive development agreement entered into under this subchapter may include any provision the authority considers appropriate, including a provision: (1) providing for the purchase by the authority, under terms and conditions agreed to by the parties, of the interest of a private participant in the comprehensive development agreement and related property, including any interest in a turnpike project designed, developed, financed, constructed, operated, or maintained under the comprehensive development agreement; (2) establishing the purchase price, as determined in accordance with the methodology established by the parties in the comprehensive development agreement, for the interest of a private participant in the comprehensive development agreement and related property; (3) providing for the payment of an obligation incurred under the comprehensive development agreement, including an obligation to pay the purchase price for the interest of a private participant in the comprehensive development agreement, from any available source, including securing the obligation by a pledge of revenues of the authority derived from the applicable project, which pledge shall have priority as established by the authority; (4) permitting the private participant to pledge its rights under the comprehensive development agreement; (5) concerning the private participant's right to operate and collect revenue from the turnpike project; and (6) restricting the right of the authority to terminate the private participant's right to operate and collect revenue from the turnpike project unless and until any applicable termination payments have been made. (c) An authority may enter into a comprehensive development agreement under this subchapter with a private participant only if the project is identified in the department's unified transportation program or is located on a transportation corridor identified in the statewide transportation plan. (d) Section 366.406 does not apply to an obligation of an authority under a comprehensive development agreement, nor is an authority otherwise constrained from issuing bonds or other financial obligations for a turnpike project payable solely from revenues of that turnpike project or from amounts received under a comprehensive development agreement. (e) Notwithstanding any other law, and subject to compliance with the dispute resolution procedures set out in the comprehensive development agreement, an obligation of an authority under a comprehensive development agreement entered into under this subchapter to make or secure payments to a person because of the termination of the agreement, including the purchase of the interest of a private participant or other investor in a project, may be enforced by mandamus against the authority in a district court of any county of the authority, and the sovereign immunity of the authority is waived for that purpose. The district courts of any county of the authority shall have exclusive jurisdiction and venue over and to determine and adjudicate all issues necessary to adjudicate any action brought under this subsection. The remedy provided by this subsection is in addition to any legal and equitable remedies that may be available to a party to a comprehensive development agreement. (f) If an authority enters into a comprehensive development agreement with a private participant that includes the collection by the private participant of tolls for the use of a toll project, the private participant shall submit to the authority for approval: (1) the methodology for: (A) the setting of tolls; and (B) increasing the amount of the tolls; (2) a plan outlining methods the private participant will use to collect the tolls, including: (A) any charge to be imposed as a penalty for late payment of a toll; and (B) any charge to be imposed to recover the cost of collecting a delinquent toll; and (3) any proposed change in an approved methodology for the setting of a toll or a plan for collecting the toll. (g) Except as provided by this subsection, a comprehensive development agreement with a private participant that includes the collection by the private participant of tolls for the use of a toll project may be for a term not longer than 50 years from the later of the date of final acceptance of the project or the start of revenue operations by the private participant, not to exceed a total term of 52 years. The contract must contain an explicit mechanism for setting the price for the purchase by the authority of the interest of the private participant in the contract and related property, including any interest in a highway or other facility designed, developed, financed, constructed, operated, or maintained under the contract. Added by Acts 2007, 80th Leg., R.S., Ch. 264 (S.B. 792), Sec. 9.03, eff. June 11, 2007. Amended by: Acts 2009, 81st Leg., R.S., Ch. 770 (S.B. 882), Sec. 3, eff. June 19, 2009.